Tag Archives: National Labor Relations Board (NLRB)

NLRB publishes proposed changes to union election procedures

The National Labor Relations Board (Board or NLRB) issued on Friday its first proposed regulation in a series that will overhaul parts of union election procedures. The Board’s 113-page proposed rule, which was published in the Federal Register today, Monday, August 12, modifies three of the board’s election processes: (1) the handling of blocking charges; … Continue Reading

NLRB returns to more employer-friendly independent contractor test

In a recent decision involving SuperShuttle drivers, the National Labor Relations Board (NLRB or Board) overruled a 2014 decision making it less likely a worker would be deemed an independent contractor, returning to the more employer-friendly common law test to determine independent contractor status. In 2014, the Board purported to clarify the standard for evaluating … Continue Reading

NLRB clarifies standard for protected concerted activity

On January 11, 2019, the National Labor Relations Board clarified and narrowed the standard for finding that an employee engaged in protected concerted activities under the National Labor Relations Act. See Alstate Maintenance, LLC, 367 NLRB No. 68 (2019). In doing so, the board overturned a 2011 decision – WorldMark by Wyndham, 356 NLRB 765 … Continue Reading

Divided D.C. Circuit panel largely upholds the NLRB’s Browning-Ferris decision and challenges the Board’s authority to conduct rulemaking

On December 28, 2018, a divided D.C. Circuit panel affirmed, in part, the National Labor Relations Board’s (NLRB’s or Board’s) Browning-Ferris joint-employer analysis. See Browning-Ferris Indus. of Cal., Inc. v. NLRB, No. 16-1028 (D.C. Cir. Dec. 28, 2018). The D.C. Circuit’s decision marks the latest chapter in the NLRB’s ever-shifting joint-employer standard. At issue on … Continue Reading

Recent NLRB Work Rule Decision Strikes Down Another Commonly Promulgated Policy

Issuing yet another blow to commonly promulgated workplace rules, the National Labor Relations Board (“NLRB”) struck down a Whole Foods Market policy prohibiting employees from recording conversations, meetings, phone calls and other activities at work.  [Whole Foods Market, Inc., 2015 BL 424627, 363 N.L.R.B. No. 87 (Dec. 24, 2015)].  Despite Whole Foods’ explanation that the … Continue Reading

NLRB Case May Give Unions Two Bites at the Apple

The National Labor Relations Board has just agreed to consider forcing employers to defend unfair practice claims twice—once before an arbitrator, and then again before the Board.  The case is Babcock v. Wilcox Constr., No. 28-CA-022625 ("Babcock"). Interested parties are invited to submit briefs to the Board on whether it should maintain, modify, or abandon … Continue Reading

NLRB Judge Invalidates Company Dress Code

A National Labor Relations Board (“NLRB”) Administrative Law Judge (“ALJ”) partially invalidated a Honda dealer’s dress code that prohibited employees who have contact with the public from wearing pins, insignia or other message clothing. A copy of the decision is attached here. Even though the work rule applied to all messaging regardless of the topic, … Continue Reading

Employers Take Notice: Scrutinize Your Social Media Policies Now!

NLRB: Employers cannot forbid employees from disparaging their employers and companies. An NLRB Administrative Law Judge, following the lead of the NLRB from its recent decision in Costco Wholesale Inc., invalidated social media and other employment policies of DISH Network, Inc. Linked here is that decision. The invalidated policies (1) prohibited employees from disparaging the company … Continue Reading

NLRB Requires Employers to Respond to Irrelevant Information Requests from Unions

The NLRB added to its step-by-step expansion of union rights at the expense of employers, this time by requiring employers to “promptly respond” to even irrelevant information requests from unions. This “irrelevant” ruling is an extension of well-established NLRB case law that an employer’s duty to bargain in good faith includes the obligation to provide requested … Continue Reading

NLRB General Counsel Backs Off Prohibiting All Employment-At-Will Disclaimers

In an apparent victory for employers, the NLRB’s General Counsel (“GC”) issued a pair of Advice Memoranda upholding handbook employment-at-will disclaimers comparable to provisions found unlawful several months ago by the same GC. In the Memos, found here and here, the GC concludes that the following disclaimers did not explicitly restrict employees’ protected activities and were not … Continue Reading

Employer’s E-Mail System May Become Tool for Union Organizing

The National Labor Relations Board (“NLRB”) is expected to issue a ruling shortly on whether employers can lawfully prohibit their employees and unions from using employer-owned e-mail and intranet systems to distribute union campaign materials. An NLRB decision favoring employee and union use of these internal communication avenues for union organizing and other NLRA-protected activities would … Continue Reading

Alaska First State to Recognize Union-Employee Privilege in Communications

In a decision that may extend to other state and federal courts, the National Labor Relations Board, and to labor arbitrations, Alaska’s Supreme Court became the first state or federal court to recognize an implied statutory privilege for union-employee communications during a disciplinary or grievance proceeding to block questioning about them. Comparable to confidential attorney-client communications, … Continue Reading

Legality of “At Will” Language in Employee Handbooks Left Unresolved

Inserting itself once again in the relationship between employers and their non-union employees, the National Labor Relations Board ("NLRB") recently settled a case in which the General Counsel alleged that certain common "at-will" disclaimers in employee handbooks and manuals violated the National Labor Relations Act ("NLRA"). Raised but unresolved is the impact of this settlement … Continue Reading

NLRB General Counsel Issues Third Report on Social Media Cases

The National Labor Relations Board’s (NLRB’s) Acting General Counsel Lafe Solomon issued his third report on social media cases handled by the NLRB. Copies of all three memos are available here, here and here, in the order issued. Our previous blog post discussing the second memo can be found here. The most recent, third report reviews … Continue Reading

NLRB’S “Quickie Election” Rules Invalidated

The United States District Court for the District of Columbia voided the NLRB’s so-called “quickie election” rules because the NLRB lacked the quorum necessary when it adopted its Amended Election Rules to expedite the current union election process. See Chamber of Commerce, et al v. NLRB. Our more in-depth analysis of those amended rules is in our … Continue Reading

NLRB Continues To Oppose Arbitration Policies That “Chill” Employee Class Actions

The General Counsel for the National Labor Relations Board ("Board") issued a complaint yesterday alleging that 24 Hour Fitness USA, Inc., violated the National Labor Relations Act ("NLRA") by insisting that all employment-related disputes be resolved through individual arbitration. The employer, which operates fitness centers nationwide, requires its non-union workforce, as a precondition of hire, … Continue Reading

NLRB Posting Requirement Upheld, But Enforcement Limited

As we have discussed in earlier posts found here and here, several national trade associations challenged the NLRB’s Rule that requires all employers covered by the National Labor Relations Act to post a notice notifying employees of their rights under the Act. In response to those filings, a federal district court upheld the posting requirement, but struck … Continue Reading

NLRB General Counsel Issues Second Report on Social Media Cases

This post was also written by Samantha M. Clancy. The National Labor Relations Board’s (NLRB’s) Acting General Counsel Lafe Solomon recently issued a report on social media cases handled by the NLRB. This second report—he issued his first in August 2011— provides guidance to employers in developing and enforcing social media policies to comply with the National … Continue Reading

White House Announces Recess Appointments to NLRB

This afternoon, the White House announced President Obama’s intention to recess appoint three members of the National Labor Relations Board, including Sharon Block, Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor, Terence F. Flynn, Chief Counsel to Member Brian Hayes, and Richard Griffin, General Counsel for International Union of Operating Engineers. … Continue Reading

National Labor Relations Board Passes Rules to Assist Union Organizing Campaigns

On November 30, 2011, the National Labor Relations Board (“Board”) voted 2-1 to advance certain proposed rules to expedite the current union election process and significantly limit employer participation in that process. The proposed rules will be drafted in final form for eventual publication in the Federal Register and re-voted by the Board. Uncertainty lingers, … Continue Reading

U.S.: NLRB Rules & Decisions Challenged in Congress & in Court

The U.S. House of Representatives Committee on Education and the Workforce has approved the Workforce Democracy and Fairness Act (“Bill”), which is part of the House Republican jobs agenda aimed at removing regulatory hurdles to creation of jobs. The Bill is a legislative challenge to a recent NLRB Rule. That Rule provides for conducting union representation elections … Continue Reading
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